Physicians unwilling to kill already face demands that they find someone
who will

Background

In June, 2012, a British Columbia Supreme Court Justice struck
down Canada's absolute ban on assisted suicide as well as the
rule that one cannot legally consent to be killed. The
decision pertained only to cases of physician-assisted suicide
or homicide. The ruling was overturned in the Court of Appeal
of British Columbia in a 2/1 decision. The plaintiffs appealed
to the Supreme Court of Canada.

In February, 2015, the Supreme Court of Canada struck down the criminal
law to the extent that it prohibits physician assisted suicide and
euthanasia in circumstances defined by the Court.1

It appears that most or all of the major media outlets understood this to
mean that the Court had legalized physician assisted suicide.2

However, the ruling referred not only to the assisted suicide provision
[Section 241(b)] but to Section 14, which typically pertains to murder:

No person is entitled to consent to have death
inflicted on him, and such consent does not affect the criminal
responsibility of any person by whom death may be inflicted on the person by
whom consent is given.3

This section prevents someone accused of murder from raising the defence
that the deceased consented to be killed.

In other words, the ruling not only permits physician assisted suicide,
but physician administered euthanasia. The appellants had made clear from
the very beginning that they were seeking both,4
and the Supreme Court authorized both, including them under the term of art
proposed by the appellants: "physician assisted dying."5

Unfortunately, physicians and the public reading CMA policy and the
Carter decision are likely to be perplexed by inconsistent terminology. By
"physician assisted dying" the Supreme Court means both physician
assisted suicide and physician administered euthanasia. However,
for the the Canadian Medical Association, "physician assisted death,"means
only physician assisted suicide. The CMA uses "medical aid
in dying" to refer to both physician assisted suicide and physician
administered euthanasia.6 The CMA's
written submission in Carter did not provide the new definitions,
though they are implied in the following statement:

The CMA accepts that the decision of whether or not
medical aid in dying should be allowed as a matter of law
is for lawmakers, not medical doctors, to determine. The policy itself
acknowledges, uniquely among CMA policies in this respect, that "[it is the
prerogative of society to decide whether the laws dealing with
euthanasia and assisted suicide should be changed. (Emphasis added)7

On the other hand, in his oral submissions during the CMA's intervention
at the Supreme Court, the CMA's counsel referred only to "physician assisted
death/dying," not "medical aid in dying," perhaps reflecting the usage of
the term among lawyers involved in the appeal rather than the terminology
used by his client.8

In any case, the point to emphasize is that the Court has authorized
physicians not only to help eligible patients commit suicide, but to kill
them - whether or not they are capable of suicide. The Court did not
restrict physician administered euthanasia to eligible patients who are
unable to kill themselves. Under the terms of the ruling, an eligible
patient may request euthanasia as a preferred option. This, too, was sought
by the appellants:

We advocate under Section 7 that all persons,
able-bodied or disabled, who otherwise meet the [criteria] . . . to be able
to seek the assistance of a doctor even if they could do it themselves.9

The ruling requires that physician assisted suicide and euthanasia be
limited to competent adults who clearly consent to the procedure.10
The use of the present tense suggests that consent cannot be established by
an advance directive or provided by a substitute medical decision maker if
the patient is otherwise unable to express valid consent.11

According to Carter, the condition need not be terminal, but the
patient must have "a grievous and irremediable medical condition (including
an illness, disease or disability)."12
The word "including" used here means that assisted suicide and euthanasia
may be provided not only for "illness, disease or disability," but for other
medical conditions - frailty, for example.13

While the Court notes that "minor medical conditions" would not qualify14
and that the medical condition must be "grievous," these are vague terms.
Moreover, the Court does not specify whether it is the patient or the
physician who determines that a condition is grievous. The medical condition
must be "irremediable"; in oral argument, the appellants suggested this
could be understood as "incurable."15
However, the Court further states that individuals are entitled to refuse
any treatments they find unacceptable,16
so the ruling actually means that even treatable and curable medical
conditions can be considered irremediable and incurable if the patient
refuses treatment.

Mental illness is a medical condition, and some kinds of mental illness
are thought not to affect decisional capacity or competence. In passing, the
Court remarks that the parameters they would propose in the reasons would
not apply to "persons with psychiatric disorders."17
However, the parameters actually laid out do not explicitly exclude mental
illness, so, on this point, the ruling is ambiguous.

Finally, the medical condition must cause "enduring suffering that is
intolerable to the individual."18
The Court does not specify that the suffering must be physical. Since it
acknowledges the distinction between physical and psychological suffering19
and pain and suffering,20 the reference
to intolerable suffering can be understood to mean both. Although the ruling
does not say so, it is generally understood that suffering is subjectively
assessed by the individual experiencing it.

Carter and the criminal law

If all of these criteria are met, a physician who kills a patient or
helps him commit suicide cannot be charged for murder or assisted suicide or
any other offence. However, Carter did not entirely strike down
murder and assisted suicide laws. They were invalidated only to the extent
that they prevent homicide and assisted suicide by physicians adhering to
the Court's guidelines.

In the absence of legislation, the appropriate historical reference point
for understanding the legal effect of Carter is the period between the 1938
case of R. v. Bourne and Canada's 1969 abortion law reform.
Bourne was an English case that established a defence for physicians
who provided abortions deemed necessary to preserve the life of the mother.21

Though this condition was broadly construed, physicians were still liable
to prosecution if the abortion were shown not to be required for that
purpose. In 1967, CMA representatives told a parliamentary committee that
"uncertainty about transgression of the law" was one of the reasons the
Association supported reform of the abortion law.22
Physicians wanted more than a defence to a charge. They wanted positive
assurance that they would not be prosecuted.

That assurance came when the Supreme Court of Canada struck down the
abortion law entirely in the Morgentaler case. Physicians cannot be
charged for providing abortions no matter what the circumstances.

However, even with legislation - but particularly without it - it is
difficult to see how physicians who are parties to homicide and suicide can
entirely avoid some "uncertainty about transgression of the law." In the
first place, the law against counselling suicide still stands [241(a)
Criminal Code], so, while physicians may assist with suicide under the
Carter guidelines, they can be charged if they recommend it.

Second, as a matter of public policy, complete immunity from prosecution
for murder or manslaughter can be safely guaranteed only for public
executioners acting in the course of their duties. Thus, while the
Carter ruling means that the state cannot prevent qualified patients
from obtaining therapeutic homicide and suicide from physicians, it also
means that physicians who fail to follow the Carter guidelines can
be charged for first or second degree murder,23,24
or manslaughter,25 or administering a noxious substance.26

Further, in such cases it would be a crime to conspire with the
physician,27 to do or omit to do anything for the
purpose of aiding the physician,28 to abet the
physician,29 or to counsel, procure, solicit or incite a
physician to violate the Carter guidelines,30
even if a patient is not ultimately killed.31 Thus,
anyone who deliberately participates in or facilitates euthanasia or
assisted suicide by "effective referral" or similar means is liable to be
charged unless the act is exempted by Carter from prosecution.

Moving the goalposts

The Court limited its ruling to the facts of the Carter case,
but offered no opinion "on other situations" where physicians might be asked
to kill patients or help them commit suicide.32 This
means that the parameters set by the Court in Carter can be
expanded in federal or provincial laws or in later litigation. This is
highly likely. For example: Quebec's euthanasia law is supposed to apply
only to competent adults, but, even before the law was passed, the
government was being pressured by various establishment organizations to
expand the law to authorize euthanasia by advance directives33
and extend euthanasia to the mentally ill34 and
children.35 A Provincial Territorial Expert
Advisory Group has since recommended precisely these expansions of the
original Carter ruling.36

This must be kept in mind by everyone involved in developing legal and
policy responses to the ruling, particularly those touching upon freedom of
conscience for physicians and health care workers. It would be a serious
mistake to presume that the goalposts set in Carter will not be
moved.

Carter and freedom of conscience and religion

What of physicians who do not want to kill patients or help them commit
suicide?

The question is important, because, even where euthanasia and assisted
suicide are legal, only a minority of physicians - sometimes a very small
minority - are willing to kill patients or help them kill themselves.37
Most
physicians, it seems, are unwilling to do what the Supreme Court of Canada
expects them to do: lethally inject patients and write prescriptions for
lethal medications. Ironically - some would say perversely - the appellants
claimed that this was exactly the reason that only physicians should be
permitted to kill patients or assist with suicide.38

The ruling itself is limited to the constitutional validity of the
criminal law. It does not impose a legal duty on the state or upon anyone
else to pay for euthanasia or assisted suicide or to provide or participate
in them.

That is essentially what the judges themselves acknowledge in Carter.

In our view, nothing in the declaration of
invalidity which we propose to issue would compel
physicians to provide assistance in dying. The
declaration simply renders the criminal prohibition invalid. What
follows is in the hands of the physicians' colleges, Parliament, and the
provincial legislatures (para. 132). (Emphasis added)

Note that the Court here referred to "physicians" (plural), not "a
physician" (singular). This passage indicates that striking down the
criminal prohibition did not, in the Court's view, create any obligation on
the part of physicians (individually or collectively) to provide assisted
suicide or euthanasia. The statement is limited to providing - doing the
killing or providing the lethal prescription.

However, the Court included the broader term - participation - as it
continued:

. . . we note - as did Beetz J. in addressing the
topic of physician participation in abortion in R. v. Morgentaler
-- that a physician's decision to
participate in assisted dying is a matter of conscience and, in some
cases, of religious belief (pp. 95-96). In making this observation, we do
not wish to pre-empt the legislative and regulatory response to this
judgment. Rather, we underline that the Charter rights of patients
and physicians will need to be reconciled (para. 132). (Emphasis added)

Unfortunately, euthanasia activists understand "reconciliation" to mean
forcing physicians unwilling to kill patients to find a colleague who will.39
Dr. James Downar of Toronto is one of them.

Downar said it is critical that legislators involve
stakeholders in crafting a process to ensure all Canadians have access to
physicians who will assist them in dying if they meet prescribed
conditions. Any process must also require doctors who have a conscientious
objection to refer patients to a colleague who will medically assist them
with dying.40

To suggest that this reconciliation is to be accomplished by forcing
unwilling physicians to become parties to homicide and suicide is
inconsistent with the comments of Justice Beetz in Morgentaler,
cited with approval by the full bench of the Court in Carter:

Nothing in the Criminal Code obliges the
board of an eligible hospital to appoint therapeutic abortion committees.
Indeed, a board is entitled to refuse . . . in a hospital that would
otherwise qualify to perform abortions, and boards often do so in Canada.
Given that the decision to appoint a committee is, in part, one of
conscience, and, in some cases, one which affects religious beliefs, a
law cannot force a board to appoint a committee any more than it could force
a physician to perform an abortion.41
(Emphasis added)

Note that Justice Beetz, while distinguishing between appointing a
committee and performing an abortion, nonetheless considered both acts to
involve judgements of conscience and religious belief, and the legal
suppression of one to be the equivalent of the legal suppression of the
other.

Therapeutic abortion committees did not provide abortions. In fact,
members of therapeutic abortion committees were prohibited from doing so.42The committees facilitated abortions by authorizing them. The refusal of
boards to approve the formation of such committees was a refusal to become
part of (participate in) a chain of causation culminating in abortion, even
if not every case brought to a committee resulted in abortion.

Thus, Justice Beetz' comments, affirmed by Carter, are authority
for the proposition that the state is not only precluded from forcing
individuals or institutions to provide morally contested procedures, but
also precluded from forcing them to participate indirectly by referral or
other forms of causal facilitation.

At the very least, this passage indicates that the suppression or
restriction of freedom of conscience or religion by compelling indirect
participation in a morally contested procedure is legally equivalent to
compelling direct participation, a conclusion wholly consonant with the law
on criminal responsibility and civil liability. The same constitutional
standard applies, whether the state means to force unwilling physicians to
kill patients themselves, or to force them to arrange for patients to be
killed by someone else.

Put another way, compelling indirect participation in a morally contested
act is not a constitutionally valid ‘solution' for the ‘problem' that arises
from being unable to compel direct participation.

The Court's statement that "the Charter rights of patients and
physicians will need to be reconciled" is not, as some seem to think, a
warrant for the suppression of freedom of conscience and religion among
health care workers.

The Charter right of patients clearly established by Carter
is a legal right not to be impeded or obstructed by the state in seeking
euthanasia and assisted suicide in accordance with the Court's guidelines
from willing physicians, except to the extent that impediments or
obstructions can be demonstrably justified in a free and democratic society.

The Charter right of physicians clearly established by
Carter is their legal right not to be to impeded or obstructed by the
state in providing euthanasia and assisted suicide in accordance with the
Court's guidelines, except to the extent that impediments or obstructions
can be demonstrably justified in a free and democratic society.

Any additional rights claims are derived by reading into the ruling what
the judges either did not address, or purposefully and expressly left out.

11.
This interpretation has been adopted by others. The College of Physicians
and Surgeons of Alberta recently released a policy on euthanasia and
assisted suicide that states, "PAD cannot be provided to
patients who lack the capacity to make the decision, including when consent
can only be provided by an alternate decision maker, is known by patient
wishes or is provided through a personal directive." (Emphasis in the
original). College of Physicians and Surgeons of Alberta,
Physician Assisted Death (December, 2015) (Accessed
2015-12-18).

15. "We are limiting our case to people
whose condition is irremediable, or incurable if you want to use
that language, because it, assisted dying should only be allowed
in the most serious cases. And not just because somebody wants
to. It's because their condition is not going to get any
better." Supreme Court of Canada, Webcast of the Hearing
on 2014-10-15, 35591, Lee Carter, et al. v. Attorney General
of Canada, et al (British Columbia) (Civil) (By Leave).
Joseph Arvay, Oral Submission, 113:35/491:20 - 114:50/491:20
(Accessed 2015-02-09).

22. "'We don't like being lawbreakers,' Dr.
Aitken told the committee in partial explanation of the C.M.A's
motivation in supporting the move to expunge the Criminal Code's
prohibition of abortion. Dr. Gray commented that while he knew
of no doctor having been prosecuted for performing an abortion
openly in a hospital, there was still the uncertainty about
transgression of the law. Dr. Cannell reported there were 262
therapeutic abortions performed in Canadian hospitals between
1954 and 1965." Waring G. "Report from Ottawa." CMAJ
Nov. 11, 1967, vol. 97, 1233

33. The Federation of General Practitioners
believed that the legislature should consider allowing euthanasia
authorized in advance directives, though it thought that this "should
perhaps be in a second stage." Consultations, Tuesday, 17 September 2013
- Vol. 43 no. 34: Federation of General Practitioners of Quebec (Dr.
Louis Godin, Dr. Marc-André Asselin),
T#024

38. ". . . all doctors believe it is their professional and ethical
duty to do no harm. Which means, in almost every case, that they
will want to help their patients live, not die. It is for the
very reason that we advocate only physician assisted dying and
not any kind of assisted dying because we know physicians will
be reluctant gatekeepers, and only agree to it as a last
resort." Supreme Court of Canada, Webcast of the Hearing on
2014-10-15, 35591, Lee Carter, et al. v. Attorney General of
Canada, et al (British Columbia) (Civil) (By Leave).
Joseph Arvay, Oral Submission, 81:32/491:20 - 82:12/491:20.